Vol. 51-2 Washington Update

Washington Update

Affordable Clean Energy Rule Vacated by the D.C. Circuit and What Could Be Next Under the Biden Administration

Introduction

President Biden campaigned on reforming the United States’ approach to addressing climate change. The “Biden Plan” includes, among other things, a goal to “ensure the U.S. achieves a 100% clean energy economy and reaches net-zero emissions by no later than 2050.”[1]

On President Biden’s first day in office, he issued numerous climate-related executive orders and took executive actions to advance this goal. As a result, the U.S. rejoined the Paris climate agreement,[2] federal agencies are required review all new and proposed Trump regulatory changes,[3] the Keystone XL pipeline permit was revoked[4], and oil and gas leasing in the Arctic National Wildlife Refuge was paused.[5]

While these executive orders could be implemented immediately, President Biden is likely to push for new legislation and engage in new rulemaking. In particular, President Biden is expected to address President Barack Obama’s Clean Power Plan (CPP) and President Donald Trump’s intended CPP replacement—the Affordable Clean Energy Rule (ACE Rule), which the U.S. Court of Appeals for the D.C. Circuit recently struck down.

ACE Rule as a Replacement to the Clean Power Plan

In 2015, the Obama Administration enacted the CPP to regulate power plants’ greenhouse gas (GHG) emissions.[6] Deriving its authority from the Clean Air Act’s Section 111(d), the CPP established budgets (or targets) for each state’s GHG emissions generation and directed each to develop GHG emissions-reduction plans statewide.[7] The CPP effectively required each state to create plans that would phase out coal from power plants and increase renewable energy generation. The goal was to decrease the power sector’s emissions so that 2030’s emissions are 32% less than 2005’s emissions.[8]

The plan faced legal challenges almost immediately after it was unveiled. These challenges were consolidated in a case brought before the D.C. Circuit. In February 2016, during the pendency of the case’s appeal, the Supreme Court issued an order that stayed the CPP’s implementation, pending a decision on the merits by the D.C. Circuit.[9] President Trump was elected before the D.C. Circuit could rule, and his administration replaced the CPP with the ACE Rule.

The ACE Rule emphasized a much narrower reading of the CAA’s authority. The Rule, finalized in June 2019, also repealed the CPP on the grounds that it unlawfully required states “to consider emission reductions through generation shifting,” like moving generation away from coal.[10] Instead, the ACE Rule emphasized heat rate improvements (or efficiency improvements) that could be achieved “inside the fence” of each regulated electric generating unit.[11]

Just prior to President Biden’s inauguration, the D.C. Circuit vacated the ACE Rule and its plan to relax power plants’ GHG emissions’ restrictions.[12] The Court called the ACE Rule a “fundamental misconstruction” of the CAA,[13] and rejected the Trump Administration’s narrow reading of its statutory authority as “not supported by the text, let alone plainly and unambiguously required by it.”[14]

Specifically, the Court rejected the Trump Administration’s CAA interpretation that Section 111(d) constrained emissions reduction methods to site-specific, inside-the-fence locations (i.e., “at and to the source”).[15] Instead, the Court reasoned that “Congress imposed no limits on the types of measures the EPA may consider beyond three additional criteria: cost, any non-air quality health and environmental impacts, and energy requirements.”[16]

Importantly, on February 22, 2021, the D.C. Circuit granted EPA’s request to partially stay its decision as it applied to the Trump EPA’s CPP repeal.[17] As a result, the CPP did not immediately go back into effect, leaving a clear path for the Biden EPA to develop a new rule limiting power plants’ GHG emissions.

A former Obama Administration legal counsel, Jody Freeman, called the ruling a “massive win” and argued that Biden “could go on the offense” immediately in crafting a new power plant plan.[18]

Potential Next Steps for the Biden Administration

The vacating of the ACE Rule grants the Biden administration an opportunity to develop a new regulatory structure to address the power industry’s GHG emissions. So long as the D.C. Circuit decision is upheld, the Biden Administration is not required to go through the extensive regulatory process of repealing the ACE Rule.

The Biden administration has indicated that it does not intend to revive the CPP.[19] During Biden’s EPA Administrator nominee’s, Michael Regan, confirmation hearings, Mr. Regan testified that the EPA would draw on the lessons from the CPP and ACE Rules, and that the current lack of an existing standard “‘presents a significant opportunity for the [EPA] to take a clean slate and look at how [to]] best move forward.”[20] At the time of this development’s drafting, the Biden Administration had not set forward a regulatory or legislative plan to address GHG emissions from power plants, though one is certainly expected during the President’s term.

Potential Obstacles to the Biden Administration

Though the D.C. Circuit struck down the ACE Rule, the Rule may not be entirely finished. Its proponents can mount challenges to prolong its life. Among their options, the litigants could petition for panel reconsideration of remedy or petition for rehearing en banc. Following the D.C. Circuit’s final decision on these appeals, the litigants could also appeal to the U.S. Supreme Court. These appeals’ outcomes may allow the ACE Rule to remain in place pending resolution of the hearing.

Conclusion

Regardless of whichever path the Biden Administration may take in replacing the CCP and ACE Rule, one outcome is certain: there will be continued legal battles. Any replacement rule issued by the Biden administration, even if accounting for legal concerns previously articulated by CPP opponents, will still likely be subject to extensive legal challenges in the D.C. Circuit, and if necessary, before the Supreme Court.

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Austin, Texas, office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Matthew T. Goldstein is a third-year student at The University of Texas School of Law and is a Staff Editor of the Texas Environmental Law Journal.

 

[1] The Biden Plan for a Clean Energy Revolution and Environmental Justice, Joe Biden, https://joebiden.com/climate-plan/ (last visited May 1, 2021).

[2] See Statement on Acceptance of the Paris Agreement on Climate Change on Behalf of the United States, Daily Comp. Pres. Doc. (2021).

[3] See Exec. Order No. 13990, 86 Fed. Reg. 7037 (Jan. 20, 2021).

[4] Id.

[5] Id.

[6] See U.S. Env’t Prot. Agency, Overview of the Clean Power Plan: Cutting Carbon Pollution from Power Plants 3 (2021), https://archive.epa.gov/epa/cleanpowerplan/fact-sheet-overview-clean-power-plan.html.

[7] Id.

[8] Id.

[9] West Virginia v. Env’t Prot. Agency, Order in Pending Case, 15A773 (Feb. 9, 2016).

[10] Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations (“ACE Rule”), Final Rule, 84 Fed. Reg. 32,520, 32,523-32,524 (July 8, 2019).

[11] U.S. Env’t Prot. Agency, Fact Sheet: Overview of the Final ACE Rule 1, https://www.epa.gov/sites/production/files/2019-06/documents/bser_and_eg_fact_sheet_6.18.19_final.pdf .

[12] Am. Lung Ass’n v. Env’t. Prot. Agency, 985 F.3d 914, 930 (D.C. Cir. 2021).

[13] Id.

[14] Id. at 951.

[15] Id. at 945.

[16] Id. at 946.

[17] Order, Am. Lung Ass’n v. Env’t Prot. Agency, No. 19-1140, 2021 U.S. App. LEXIS 1333 (D.C. Cir. Feb. 22, 2021).

[18] Lisa Friedman, Court Voids a ‘Tortured’ Trump Climate Rollback, The New York Times (Jan. 19, 2021), https://www.nytimes.com/2021/01/19/climate/trump-climate-change.html.

[19] Jean Chemnick, Biden won’t revive Obama’s Clean Power Plan. So Now What?, E&E News (Feb. 9, 2021), https://www.eenews.net/stories/1063724547.

[20] Id.

Vol. 51-1 Washington Updates

Washington Updates

Executive Order to Accelerate the Nation’s Economic Recovery by Expediting Infrastructure Investments

Introduction

On July 4, 2020, President Trump issued the Executive Order entitled Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities (“EO”).[1] The EO’s stated intent is to streamline regulations, thus limiting regulatory delays, in response to the economic crisis resulting from the COVID-19 pandemic.[2] The EO instructs federal agencies to use emergency powers to expedite project approvals, directing they should: (1) use their emergency authority and statutes’ emergency provisions to expedite projects; (2) provide a report listing expedited projects; and (3) provide status updates with further reports due every thirty days.[3]

This article discusses the content of the EO, and its requirements on agencies to encourage accelerated infrastructure development. Part I discusses the EO and the requirements that agencies must meet. Part II discusses the effects of the EO on industry and the environment. Part III discusses the future potential impact of the EO.

PART I: REQUIREMENTS OF THE EO

The EO instructs various federal agencies to exercise emergency authority provisions to expedite decision making, providing instructions that agencies should follow as well as reporting requirements that the agencies must undertake.[4]

In Sections 3–5, the EO designates steps that specific executive departments must take to expedite project development.[5] Listed are the Secretaries of Transportation, the Army, Defense, the Interior, and Agriculture.[6] Each department must “expedite work on, and completion of, all authorized and appropriated [projects] that are within the authority of the Secretaries.”[7] These projects include “highway and other infrastructure projects,” “civil works projects,” “and infrastructure, energy, environmental, and all natural resources projects,” depending on the Secretary’s authority.[8]

The EO requires the Secretaries to provide reports. Each Secretary must provide a “summary report[] listing all such projects that have been expedited . . . to the [Office of Management and Budget (OMB)] Director, the Assistant to the President for Economic Policy, and the Chairman of [the Council of Environmental Quality (CEQ)]” within thirty days of the EO.[9] Within thirty days of the first report, the Secretaries must “provide a status report to the [same officials] that shall list any additions or other changes.”[10] Reports are continuously required “at least every thirty days for the duration of the national emergency.”[11]

In Sections 6–8, the EO instructs agency heads to apply various environmental statutes’ emergency provisions.[12] The EO specifically addresses the National Environmental Policy Act’s (NEPA) emergency regulations and emergency procedures, the Endangered Species Act’s (ESA) emergency consultation, and the Clean Water Act’s (CWA) and other statutes administered by the U.S. Army Corp of Engineers’ (the Corps) emergency regulations and nationwide permits.[13] All agencies must “identify planned or potential actions to facilitate the Nation’s economic recovery that may be subject to the” NEPA and ESA emergency provisions, with the Corps also being subject to additional requirements under the CWA.[14]  The agencies are required to provide summary status reports on thirty-day intervals, outlining planned or potential actions to various cabinet secretaries and other individuals exerting oversight.[15]

The EO’s Section 9 requires agencies to “review all statutes, regulations, and guidance documents that may provide for emergency or expedited treatment . . . with regard to agency actions pertinent to infrastructure, energy, environmental, or natural resource matters.”[16] After, agencies must “identify planned or potential actions, including actions to facilitate the Nation’s economic recovery, that may be subject to emergency or expedited treatment.”[17] These actions must be listed in a summary report “to the OMB Director, the Assistant to the President for Economic Policy, and the Chairman of CEQ.”[18] Updated reports are also required every 30 days under this section.[19]

PART II: PURPOSES AND EFFECTS OF THE EO

The Trump Administration has made several efforts to expedite the process of approving infrastructure projects. As stated in the EO, it is another step towards “reforming and streamlining [the approval process which the Administration refers to as] an outdated regulatory system that . . . [has] hindered American infrastructure investments.”[20] Infrastructure permitting often “takes years of planning and construction.” [21] The EO’s goal is to accelerate this time-consuming process and provide project developers a means to avoid this lengthy process.[22]

It is still unclear if, how, and to what extent, agencies will implement these expedited procedures and whether project developers will want such expedited review and approval of its projects. Some are concerned that the EO could not survive a legal challenge, with commentators noting that “the legal support for the . . . EO appears dubious and likely to be challenged.”[23] As such, projects accelerated under the EO may “be subject to increased scrutiny and heightened litigation risk from third parties,”[24] as courts have applied the relevant emergency powers narrowly in the past.[25] The judiciary has limited the use of these powers to projects responding to emergencies that posed an “imminent hazard to human health and the environment.”[26] While certain developers are wary of possible legal challenges, some projects are moving forward under the EO, including an oil-drilling project in Alaska and a private spaceport in Florida.[27]

Environmental organizations have voiced their own concerns, arguing the EO will allow projects to avoid environmental regulations and that expedited approval will harm the environment.[28] Gina McCarthy, former EPA Administrator, and the current President and CEO of the Natural Resources Defense Council, stated: “Abusing emergency powers to deep-six necessary environmental reviews is utterly senseless. . . . Getting rid of them will hit those who live closest to polluting facilities and highways the hardest.”[29] The Center for Biological Diversity also expressed its concerns in a letter to the Trump Administration.[30] The Center said that it would seek litigation if the Administration did not revoke the order.[31] Litigation that may emerge from the Center and other organizations is likely to slow projects that seek to be accelerated. It remains to be seen whether the costs and time lost in litigation outweigh the EO’s benefits.

PART III: THE FUTURE OF THE EO

The November 2020 Presidential election probably determined the EO’s future. The president has the power to revoke Executive orders. The President can revoke Executive Orders alone.[32] Because former Vice President Joe Biden won the election, he is likely to revoke the order and may even impose more stringent standards on expedited projects in the future. A shifting standard poses an additional complication for projects that hope to benefit from the EO.

 

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Austin, Texas office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Kylan MacLeod is a second-year student at The University of Texas School of Law and is a Staff Editor of the Texas Environmental Law Journal.

 

[1] Exec. Order No. 13927, 85 Fed. Reg. 35165 (June 4, 2020).

[2] Id.

[3] See id. at 35165–70.

[4] See id.

[5] See id. at 35166–67.

[6] Id.

[7] Exec. Order No. 13927, 85 Fed. Reg. 35165, 35166–67 (June 4, 2020).

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 35167–69.

[13] Exec. Order No. 13927, 85 Fed. Reg. 35165, 35167–69 (June 4, 2020).

[14] Id.

[15] Id.

[16] Id. at 35169–70.

[17] Id. at 35169.

[18] Id.

[19] Exec. Order No. 13927, 85 Fed. Reg. 35165, 35170 (June 4, 2020).

[20] Id. at 35165.

[21] Rachel L. Lipinski, Jonathan D. Simon, & Tyson C. Cade, Executive Order Seeks to Promote Economic Recovery by Expediting Environmental Reviews for Project Development, Van Ness Feldman LLP (June 8, 2020), https://www.vnf.com.

[22] Exec. Order No. 13927, 85 Fed. Reg. 35165 (June 4, 2020).

[23] United States: Trump Administration Issues Executive Order Seeking to Expedite Environmental Reviews for Infrastructure Projects, Baker McKenzie (June 12, 2020), https://www.bakermckenzie.com [hereinafter Trump Administration].

[24] Lipinski et al., supra note 20.

[25] Trump Administration, supra note 20.

[26] Id.

[27] See Rebecca Beitsch & Rachel Frazin, Major Drilling Projects Among Dozens Fast-Tracked after Trump Order, The Hill (Sept. 2, 2020), https://thehill.com/policy/energy-environment/514809-major-drilling-projects-among-dozens-fast-tracked-after-trump-order; see also FAA Fast Tracks EIS, Will not Seek Comments, News-Leader (Sept. 22, 2020), https://www.fbnewsleader.com/regional/faa-fast-tracks-eis-will-not-seek-comments#:~:text=The%20Federal%20Aviation%20Administration%20has,fast%20track%20the%20licensing%20decision.

[28] See, e.g., Mark Drajem, NRDC: Trump Tries to Throw Out Environmental Reviews While Nation in Crisis, NRDC (June 4, 2020), https://www.nrdc.org/media/2020/200604; see also Letter from the Center for Biological Diversity to President Donald Trump (June 9, 2020), https://www.biologicaldiversity.org/campaigns/esa_attacks/pdfs/NOI-to-President-Trump-regarding-his-violations-of-the-Endangered-Species-Act.pdf [hereinafter Letter]. .

[29] Drajem, supra note 28.

[30] Letter, supra note 28.

[31] Id.

[32] Vivian S. Chu & Todd Garvey, Congressional Research Service: Executive Orders: Issuance, Modification, and Revocation, 7 (2014).

Vol. 50-1 Washington Update

By Jacob Arechiga and Kylan MacLeod

Washington Updates

Executive Order to Accelerate the Nation’s Economic Recovery by Expediting Infrastructure Investments

Introduction

On July 4, 2020, President Trump issued the Executive Order entitled Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities (“EO”).[1] The EO’s stated intent is to streamline regulations, thus limiting regulatory delays, in response to the economic crisis resulting from the COVID-19 pandemic.[2] The EO instructs federal agencies to use emergency powers to expedite project approvals, directing they should: (1) use their emergency authority and statutes’ emergency provisions to expedite projects; (2) provide a report listing expedited projects; and (3) provide status updates with further reports due every thirty days.[3]

This article discusses the content of the EO, and its requirements on agencies to encourage accelerated infrastructure development. Part I discusses the EO and the requirements that agencies must meet. Part II discusses the effects of the EO on industry and the environment. Part III discusses the future potential impact of the EO.

PART I: REQUIREMENTS OF THE EO

The EO instructs various federal agencies to exercise emergency authority provisions to expedite decision making, providing instructions that agencies should follow as well as reporting requirements that the agencies must undertake.[4]

In Sections 3–5, the EO designates steps that specific executive departments must take to expedite project development.[5] Listed are the Secretaries of Transportation, the Army, Defense, the Interior, and Agriculture.[6] Each department must “expedite work on, and completion of, all authorized and appropriated [projects] that are within the authority of the Secretaries.”[7] These projects include “highway and other infrastructure projects,” “civil works projects,” “and infrastructure, energy, environmental, and all natural resources projects,” depending on the Secretary’s authority.[8]

The EO requires the Secretaries to provide reports. Each Secretary must provide a “summary report[] listing all such projects that have been expedited . . . to the [Office of Management and Budget (OMB)] Director, the Assistant to the President for Economic Policy, and the Chairman of [the Council of Environmental Quality (CEQ)]” within thirty days of the EO.[9] Within thirty days of the first report, the Secretaries must “provide a status report to the [same officials] that shall list any additions or other changes.”[10] Reports are continuously required “at least every thirty days for the duration of the national emergency.”[11]

In Sections 6–8, the EO instructs agency heads to apply various environmental statutes’ emergency provisions.[12] The EO specifically addresses the National Environmental Policy Act’s (NEPA) emergency regulations and emergency procedures, the Endangered Species Act’s (ESA) emergency consultation, and the Clean Water Act’s (CWA) and other statutes administered by the U.S. Army Corp of Engineers’ (the Corps) emergency regulations and nationwide permits.[13] All agencies must “identify planned or potential actions to facilitate the Nation’s economic recovery that may be subject to the” NEPA and ESA emergency provisions, with the Corps also being subject to additional requirements under the CWA.[14]  The agencies are required to provide summary status reports on thirty-day intervals, outlining planned or potential actions to various cabinet secretaries and other individuals exerting oversight.[15]

The EO’s Section 9 requires agencies to “review all statutes, regulations, and guidance documents that may provide for emergency or expedited treatment . . . with regard to agency actions pertinent to infrastructure, energy, environmental, or natural resource matters.”[16] After, agencies must “identify planned or potential actions, including actions to facilitate the Nation’s economic recovery, that may be subject to emergency or expedited treatment.”[17] These actions must be listed in a summary report “to the OMB Director, the Assistant to the President for Economic Policy, and the Chairman of CEQ.”[18] Updated reports are also required every 30 days under this section.[19]

PART II: PURPOSES AND EFFECTS OF THE EO

The Trump Administration has made several efforts to expedite the process of approving infrastructure projects. As stated in the EO, it is another step towards “reforming and streamlining [the approval process which the Administration refers to as] an outdated regulatory system that . . . [has] hindered American infrastructure investments.”[20] Infrastructure permitting often “takes years of planning and construction.” [21] The EO’s goal is to accelerate this time-consuming process and provide project developers a means to avoid this lengthy process.[22]

It is still unclear if, how, and to what extent, agencies will implement these expedited procedures and whether project developers will want such expedited review and approval of its projects. Some are concerned that the EO could not survive a legal challenge, with commentators noting that “the legal support for the . . . EO appears dubious and likely to be challenged.”[23] As such, projects accelerated under the EO may “be subject to increased scrutiny and heightened litigation risk from third parties,”[24] as courts have applied the relevant emergency powers narrowly in the past.[25] The judiciary has limited the use of these powers to projects responding to emergencies that posed an “imminent hazard to human health and the environment.”[26] While certain developers are wary of possible legal challenges, some projects are moving forward under the EO, including an oil-drilling project in Alaska and a private spaceport in Florida.[27]

Environmental organizations have voiced their own concerns, arguing the EO will allow projects to avoid environmental regulations and that expedited approval will harm the environment.[28] Gina McCarthy, former EPA Administrator, and the current President and CEO of the Natural Resources Defense Council, stated: “Abusing emergency powers to deep-six necessary environmental reviews is utterly senseless. . . . Getting rid of them will hit those who live closest to polluting facilities and highways the hardest.”[29] The Center for Biological Diversity also expressed its concerns in a letter to the Trump Administration.[30] The Center said that it would seek litigation if the Administration did not revoke the order.[31] Litigation that may emerge from the Center and other organizations is likely to slow projects that seek to be accelerated. It remains to be seen whether the costs and time lost in litigation outweigh the EO’s benefits.

PART III: THE FUTURE OF THE EO

The November 2020 Presidential election probably determined the EO’s future. The president has the power to revoke Executive orders. The President can revoke Executive Orders alone.[32] Because former Vice President Joe Biden won the election, he is likely to revoke the order and may even impose more stringent standards on expedited projects in the future. A shifting standard poses an additional complication for projects that hope to benefit from the EO.

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Austin, Texas office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Kylan MacLeod is a second-year student at The University of Texas School of Law and is a Staff Editor of the Texas Environmental Law Journal.

 

[1] Exec. Order No. 13927, 85 Fed. Reg. 35165 (June 4, 2020).

[2] Id.

[3] See id. at 35165–70.

[4] See id.

[5] See id. at 35166–67.

[6] Id.

[7] Exec. Order No. 13927, 85 Fed. Reg. 35165, 35166–67 (June 4, 2020).

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 35167–69.

[13] Exec. Order No. 13927, 85 Fed. Reg. 35165, 35167–69 (June 4, 2020).

[14] Id.

[15] Id.

[16] Id. at 35169–70.

[17] Id. at 35169.

[18] Id.

[19] Exec. Order No. 13927, 85 Fed. Reg. 35165, 35170 (June 4, 2020).

[20] Id. at 35165.

[21] Rachel L. Lipinski, Jonathan D. Simon, & Tyson C. Cade, Executive Order Seeks to Promote Economic Recovery by Expediting Environmental Reviews for Project Development, Van Ness Feldman LLP (June 8, 2020), https://www.vnf.com.

[22] Exec. Order No. 13927, 85 Fed. Reg. 35165 (June 4, 2020).

[23] United States: Trump Administration Issues Executive Order Seeking to Expedite Environmental Reviews for Infrastructure Projects, Baker McKenzie (June 12, 2020), https://www.bakermckenzie.com [hereinafter Trump Administration].

[24] Lipinski et al., supra note 20.

[25] Trump Administration, supra note 20.

[26] Id.

[27] See Rebecca Beitsch & Rachel Frazin, Major Drilling Projects Among Dozens Fast-Tracked after Trump Order, The Hill (Sept. 2, 2020), https://thehill.com/policy/energy-environment/514809-major-drilling-projects-among-dozens-fast-tracked-after-trump-order; see also FAA Fast Tracks EIS, Will not Seek Comments, News-Leader (Sept. 22, 2020), https://www.fbnewsleader.com/regional/faa-fast-tracks-eis-will-not-seek-comments#:~:text=The%20Federal%20Aviation%20Administration%20has,fast%
20track%20the%20licensing%20decision..

[28] See, e.g., Mark Drajem, NRDC: Trump Tries to Throw Out Environmental Reviews While Nation in Crisis, NRDC (June 4, 2020), https://www.nrdc.org/media/2020/200604; see also Letter from the Center for Biological Diversity to President Donald Trump (June 9, 2020), https://www.biologicaldiversity.org/campaigns/esa_attacks/pdfs/NOI-to-President-Trump-regarding-his-violations-of-the-Endangered-Species-Act.pdf [hereinafter Letter]. .

[29] Drajem, supra note 28.

[30] Letter, supra note 28.

[31] Id.

[32] Vivian S. Chu & Todd Garvey, Congressional Research Service: Executive Orders: Issuance, Modification, and Revocation, 7 (2014).